One of the justifiable lead stories across the world today is the remarkable landslide vote in Ireland to repeal the existing 8th Amendment of the Irish Constitution, which banned abortion. The NYTimes quote the Prime Minister, Leo Vardakar (who happens to be gay), "This has been a great exercise in democracy, and the people have spoken and the people have said: We want a modern constitution for a modern country, and that we trust women and that we respect them to make the right decisions and rights [sic] choices about their own health care." I am personally delighted with this outcome, though it's worth noting that it is a non-sequitur to express confidence that women (or anyone else) will necessarily make "the right decisions" in any given situation. As Ronald Dworkin argued, to "take rights seriously" means to accord people the right to make what can legitimately be regarded as a wrong decision that is nonetheless protected because of one's respect for individual autonomy.

But I want to place the Irish vote within the context of an argument often heard in this country, i.e., that fundamental rights are not subject to democratic decision making. It is, many people would argue, correctly, beside the point if, say, a majority in a given jurisdiction wish to continue discriminating on grounds of race, gender, sexual orientation, etc. Such policy should not be subject to a vote. It is, many would say, the purpose of a constitution to take certain issues out of the realm of ordinary politics, including referenda.

The obvious question is how one decides which issues are subject to democratic decision making, including referenda, which, unlike many of my colleagues, I tend to think are valuable complements to representative government. Would it be "better," if, say, the Irish Supreme Court or the European Court of Human Rights had come to a conclusion that Amendment Eight were "unconstitutional" because a violation of the transcendent right of reproductive choice? A decision of the Irish Court would, of course, have to adopt the extremely interesting notion of "unconstitutional constitutional amendments," a doctrine that is present in a variety of legal systems across the world, as articulated in Yaniv Roznai's recent fascinating book on the subject. (Ask yourself if the United States could reinstitute slavery by adding a new amendment proposed and ratified in accordance with the procedures set out in Article V.)

Still, the obvious question is whether such determinations are better made by ostensible "experts," whether in law, philosophy, or whatever, or by "we the people" engaging in what Publius might have called "reflection and choice" about an issue of fundamental importance, which abortion certainly is. It appears, for example, that the Irish debate was serious and deep. Whatever one might think of referenda in, say, California, many other countries, including Switzerland most notably, often resort to referenda. To be sure, some of the decisions strike me as terrible. But is that enough to discredit the very notion of "putting rights to a vote" and believing that the result ought to be respected at least as a legal matter even if one's response is to start organizing for a new referenda? (Think incidentally, of Brexit in this context.)

[UPDATE[ On the offhand possibility that some of you don't read through the comments, I want to offer some observations about my colleague Joseph Fishkin's common below. This is not meant to denigrate the other comments, which are quite thoughtful and civil.

But I don't think it's necessarily true that it's a "non-sequitur" what expectations one has about the likely choices people will make with their rights, when deciding what the scheme of rights ought to be. It's true that if you are Dworkin, or perhaps more to the point, Judith Jarvis Thompson, then those expectations are entirely irrelevant. I'm sure many Irish voters agree. But there's also a mushy middle bunch of Irish voters for whom it matters a lot what is actually going to happen when you extend this right. Whether or not I agree with them, those people's views don't seem to me particularly illegitimate, and I don't think you can easily avoid including such views in the decision calculus, whether you leave questions of right up to courts or decide them in referenda.

I think that this raises a deep point. Would we in fact support any given right if we didn't feel that, overall, people would use their assigned rights well, which would inevitably involve at least something of a utilitarian calculus that the world benefits from the choices made. If we thought that freedom of speech, overall, harmed society, would we really be so avid in the support that most of us give to it? One reason for the cleavage on the Second Amendment, I suspect, is that millions of Americans believe that guns constitute an overall contribution to society, even if all but the most foolish would admit that the right can be misused, while millions of other Americans believe there is nothing resembling a net benefit to the right to bear arms and that those who assert an individual right to do so are in the same category as those who assert their Firat Amendment right to burn crosses. With regard to abortion, what supporters must believe, I suspect, is that, overall, most women who get abortions (and data suggests that roughly 1/3 of all American women will have an abortion over the course of their lifetimes) will do so for what outside observers would call "good reasons." Some opponents of reproductive rights rely exclusively on the premise that the fetus is a human being with an absolute right to live (unless, presumably, she threatens the life of the mother). But I suspect that many believe that most choices to abort are casual or truly self-indulgent, which almost no supporters of abortion rights believes. I most certainly would have voted to repeal Amendment 8 partly because of an abstract commitment to individual rights, but, at least as much, because I do trust most women to behave responsibly in making such choices. Those who don't deserve protection for the same reason that the Ku Klux Klan march I defended as an ACLU lawyer do: I simply don't trust the state to make the determination as to who is behaving responsibly. But if most speakers were Klansmen, I might well reconsider.

Ultimately, there is going to be some points where "rights are put to a vote," and our own federal Constitution shows this. The question is what level of "stickiness" should certain things have. The vote after all overturned the "Eighth Amendment" to the Irish Constitution.

By my understanding, Ireland has some form of judicial review and until that amendment was repealed, abortion could not be generally allowed by simple legislation. (The nuances of Irish constitutional law on the point would be interesting -- e.g., Canada has a method to repeal Supreme Court rulings to some extent).

State constitutions here are easier to amend or even replace though how hard depends on the state and it isn't as easy as simple legislation. We saw this with regard to state DOMAs. I think it is valid to make certain structural and rights based things very hard to repeal though how hard and what exactly is covered will be a big debate.

Can it be said that this vote clarifies the separation of Church and State in Ireland? Here in America, under President Trump, it seems that the effort is to undo what Jefferson declared in his letter to a Baptist group by means of Trump's accommodating his base of Revengelicals (FKA Evangelicals who conveniently overlook Trump's long history of amorality) in areas involving the right to choose.

I do think too often "rights" in this country is seen as "things upheld in court" as if anything that is submitted to a vote isn't really that important.

The Bill of Rights were seen at the time as specific fundamental things that in part needed to be specifically written down for emphasis. Judicial review existed as a concept but much softer than it is today. The restraint was largely popular in nature.

Courts do only so much. Rights continue to be most protected on an every day basis outside of them.

While perhaps off-topic, Sandy's closing parenthetical raises an important point: a possible vote correcting the earlier Brexit vote. Italy is said, with its new government, to be considering challenges to the EU. Hungary and Poland already presented some challenges. While not the same as the 1860-1 Civil War secessions, the concept of united we stand, divided we fall, comes to mind, especially in these perilous times. A strong EU may be beneficial to America's surviving the Trump error [sic] in a world that is becoming more authoritarian.

Regarding "unconstitutional constitutional amendments" in connection with reinstitution of slavery, perhaps we should look to the goal set forth in the Preamble to the 1787 Constitution regarding "a more perfect Union." I just reviewed the 27 As to our Constitution and although perhaps the 11th A may be questionable, and the 18th A was abrogated by the 21st A, the remainder, all seem in accord with that goal. Granted, our Constitution does not specifically address a doctrine of "unconstitutional constitutional amendments" beyond one limitation in Article V. But it would be difficult overriding human rights such as the abolishment of slavery.

Fundamental rights don't cease or become fundamental rights on the basis of a vote. But votes have a lot to do with what government treats as fundamental rights.

My only prediction about Ireland is that, perhaps a decade from now, they'll be discussing the disturbing long term demographic implications of their national fertility rate dropping well below replacement. And an absurd number of people will resist making the connection.

A thoughtful reflection, as usual. But I don't think it's necessarily true that it's a "non-sequitur" what expectations one has about the likely choices people will make with their rights, when deciding what the scheme of rights ought to be. It's true that if you are Dworkin, or perhaps more to the point, Judith Jarvis Thompson, then those expectations are entirely irrelevant. I'm sure many Irish voters agree. But there's also a mushy middle bunch of Irish voters for whom it matters a lot what is actually going to happen when you extend this right. Whether or not I agree with them, those people's views don't seem to me particularly illegitimate, and I don't think you can easily avoid including such views in the decision calculus, whether you leave questions of right up to courts or decide them in referenda. On courts, you will often find a Justice, like Sandra Day O'Connor, who channels those moderate, consequence-minded pragmatists' views and gives them just as decisive an effect as any referendum could.

In the end I suspect it is illusory to imagine that any question can be kept entirely out of democratic debate forever. In this country, the Courts said desegregate the schools, with busing if need be; widespread popular resistance changed our politics and even changed the Court. In Ireland, the 8th Amendment itself was explicitly an attempt to pre-empt a judicial holding on abortion rights (I believe there had already been a decision on contraceptives). It succeeded in taking the issue off the table of democratic debate for a while--but not indefinitely.

"How low does the birth rate have to be to have the fertility rate to drop that low?"

Ireland's fertility rate dropped from 4 to about 2 (replacement) between 1970 and 1990, (Amendment 8 was adopted in 1983.) and then stabilized at just about replacement up until recently.

The average fertility rate for the EU is currently 1.58, a rate you'd normally see only during a war or famine. That's the sort of rate that causes demographic collapse if sustained, not enough new people being born to sustain a normal ratio of ages; Instead you are looking at a population dramatically shifted towards the elderly.

Most European governments have responded by massive programs of immigration, to replace the citizens natives aren't giving birth to. But the rate at which you have to do that when your fertility rate is THAT far below replacement means that, in a couple generations, the majority of the population will be recent immigrants and their children.

So, until this referendum, the situation in Ireland, unlike most of the EU, was fairly stable. It's my expectation that they're going to now join the rest of the EU in demographic collapse.

In a few generations, there will still be countries called "Italy", "Spain", and so forth. They just won't bear much resemblance to those countries today, either ethnically or culturally.

Brett's closing paragraph in his 7:13 PM comment just might reflect the fear here in America for Trump's base of the Forgotten in the 2016 election. Maybe the Forgotten should increase their fertility rates to compete with those of other demographic groups, unless they have forgotten how.

It seems to me that the strongest arguments for the intervention of a Court to protect rights was stated in Footnote 4, and by John Hart Ely. After all, the whole idea of voting to decide issues doesn't make much sense if disfavored groups are denied the right to vote. The same holds true of fair representation when decisions are made in a representative assembly. Rights supplemental to voting such as a broad understanding of free speech, also seem essential to the reasoned discussion which makes us take the result of a vote seriously.

The next level, hinted in Footnote 4, would seem to be "fundamental republican values". Equality is one of those, but the boundaries of that have always been subject to some contest. I think there are others as well, but I'll leave it here to avoid diverting the discussion into the details.

Ireland has a rather rather original institution, the Referendum Commission.

https://refcom2018.refcom.ie

The commission's job is explaining a referendum to the electors. The vast majority of that work is answering questions from the public about the impact of the referendum. After the marriage equality referendum both sides agreed the referendum commission had dealt with them fairly.

Because of the commission's work the spurious arguments that are often seen in referendums like Brexit are simply not available to either side and the argument tends to be substantive.

" It is, many would say, the purpose of a constitution to take certain issues out of the realm of ordinary politics, including referenda.

The obvious question is how one decides which issues are subject to democratic decision making, including referenda, which, unlike many of my colleagues, I tend to think are valuable complements to representative government."

Ordinarily, you take certain issues out of ordinary politics, by actually stating in a constitution that they're out of ordinary politics. That is to say, by resorting to extraordinary politics. That way they only get taken out of ordinary politics when there is a considerable consensus that it ought to be done.

The problem with empowering judges to do this without an explicit textual basis in the constitution in question, is that judges then become a means to make a society less democratic, and they will be used that way.

And, since you don't need the judges to do that if there's a strong consensus, the judges get used to circumvent democracy in cases where there isn't a strong consensus that the judges are right, or even when there's a consensus that they're wrong.

Nothing, of course, guarantees that the judges will be more enlightened than the democratic majorities. But they certainly will think themselves more enlightened.

Ireland has rejoined the European mainstream - including the UK - that abortion is best dealt with by normal democratic legislation, and not as a matter of justiciable fundamental rights either way. The argument for this is that it's a matter of a clash of rights - the woman's to control her own body, the fetus' to moral consideration. There is no right answer, and the debate shifts with medical knowledge and understandings of equality. The USA is now even more of an outlier in adjudicating the conflict through interpretation of an 18th-century political document.

Judicial review is in the post-WWII modern era seen as an appropriate tool, but how it is applied depends on the country. They might not rely on 18th Century documents, though the Brits do sometimes rely on old stuff, but they have repeatedly in recent years used the courts to protect rights including involving abortion, same sex relations, drug use and more.

As to Mark Field's comment, FN4 has been applied to abortion rights, including respecting the disfavored groups often involved. There is a wider argument that it is a necessary part of equality for women in public life. In the Western world, it has generally been understood this is a given, though the line drawn (with better health benefits) is often different. Nonetheless, the average in Europe still covers most abortions.

Sandy: Still, the obvious question is whether such determinations are better made by ostensible "experts," whether in law, philosophy, or whatever, or by "we the people" engaging in what Publics might have called 'reflection and choice" about an issue of fundamental importance, which abortion certainly is.

In a constitutional government, the people thorugh a direct or representative democracy and the courts have different roles. A majority of we the people decide policy by determining when to employ government power to direct our lives. The courts should only determine whether the constitution permits the exercise of power.

In the case of abortion, our courts arrogated the policy decision to themselves by inventing a “right” nowhere found or implied in the Constitution.

Would it be "better," if, say, the Irish Supreme Court or the European Court of Human Rights had come to a conclusion that Amendment Eight were "unconstitutional" because a violation of the transcendent right of reproductive choice? A decision of the Irish Court would, of course, have to adopt the extremely interesting notion of "unconstitutional constitutional amendments," a doctrine that is present in a variety of legal systems across the world, as articulated in Yaniv Roznai's recent fascinating book on the subject. (Ask yourself if the United States could reinstitute slavery by adding a new amendment proposed and ratified in accordance with the procedures set out in Article V.)

There is nothing particularly novel about the notion of “unconstitutional constitutional amendments.” Our Republic was founded on the concepts we all enjoy a natural right to liberty, a constitution can only guarantee this prexisting right and the people have a authority to change or overthrow any government infringing on our liberty.

One of our Constitution’s serious omissions is a definition of the scope of our natural right to liberty. The Bill of Rights guarantees various aspects of that liberty and then comments the list of express guarantees is not exhaustive. We should amend the Constitution to add a liberty amendment employing the harm rule - we all enjoy a fundamental right to liberty from government power so long as we do not harm others and the government may only exercise its power to prevent us from harming one another.

The harm rule would not permit abortion except in cases where the pregnancy threatened the mother with substantial bodily injury or death.

Arguably, the most fundamental liberty we enjoy is to life itself. As a point of sceintific fact, we all began our lives as genetically unique human beings at the point of conception and enjoy a right to life from that point forward. As a point of settled law, we are not free to kill another except in cases of self defense. Thus, abortion can only be considered a liberty right either if we ignore this scientific fact or the mother is acting in self defense against a harm posed by her child.

But, at an rate, abortion, including this specific law [e.g., modern abortion pills can be obtained even by mail order these days] is not something in a vacuum. It is part of a wider whole. A libertarian might even question the limits of coercion here. Would focus on that as a positive good. But, Brett is a self-expressed, including on this issue, conservative.

As to concern about national identity, over time, there is a unity there though don't think ethnic identities will drop any time soon. The fact that some society has some sort of mixture? Well, I gather that isn't really a bad thing. Our country, though some don't like the idea, seem to find it a good thing. And, control of fertility in a country where lack of it had very harsh effects over time might have influenced them too.

In the case of abortion, we're an outlier in the opposite direction from Ireland, and entirely by judicial fiat.

We are not as much as an outlier as all that as seen, for example, the judicial decisions on this question in Canada. The rights of privacy and equality, in part arising from "explicit text" (including explicit text to not merely rely on explicit text), has been protected in other countries as well as our own. The unequal results when the state forces one to give up control of one's body to have a child seen as a general wrong.

Roe v. Wade also was not "entirely by judicial fiat" in the sense of popular will. It was actually a reflection of popular will, which today also generally believes there is a constitutional right to privacy, autonomy or however it is phrased that includes to some degree a right to choose an abortion. Thus, when people elect people involved in judging, they continuously want them to in some way to protect it.

[Judges are sometimes elected but my concern here are those who appoint and confirm judges. There is a limit to citation of popular will; popularly passed laws that are unconstitutional still are legally invalid. Also, a comment won't solve anything -- there has been lots written on this subject, including history backing up the pro-choice position such as the book by Geoffrey Stone.]

Further on the status of separation of Church and State in American in the Trump error [sic], check this article at the NYTimes website: "A Christian Nationalist Blitz" By Katherine Stewart and what appears to be a "Crusade" by a group called "Project Blitz" aimed at the state governments in the manner of ALEC.

Here's the penultimate [still my favorite work] paragraph:

"What Christian nationalists know — and many of us have yet to learn — is that you don’t need a majority to hijack a modern democracy. You just need a sizable minority, marinating in its grievances, willing to act as a bloc, and impervious to correction by fact or argument. Make this group feel good about itself by making other people feel bad about themselves, and dominion may well be in reach."

"As with most of what Christian nationalists do these days, Project Blitz and its form of religious freedom is as bad for religion as it is for freedom. Religion, as most Americans understand it, has something to do with care of the soul — not ramming bills through gerrymandered legislatures. And faith has something to do with showing love for other people, not writing contempt for them into the law."

" It is, many would say, the purpose of a constitution to take certain issues out of the realm of ordinary politics, including referenda.

The obvious question is how one decides which issues are subject to democratic decision making, including referenda, which, unlike many of my colleagues, I tend to think are valuable complements to representative government."

Brett does not identify the source. These are from Sandy's post, parts of the second and third paragraphs, which read in their entirely as follows:***But I want to place the Irish vote within the context of an argument often heard in this country, i.e., that fundamental rights are not subject to democratic decision making. It is, many people would argue, correctly, beside the point if, say, a majority in a given jurisdiction wish to continue discriminating on grounds of race, gender, sexual orientation, etc. Such policy should not be subject to a vote. It is, many would say, the purpose of a constitution to take certain issues out of the realm of ordinary politics, including referenda.

The obvious question is how one decides which issues are subject to democratic decision making, including referenda, which, unlike many of my colleagues, I tend to think are valuable complements to representative government. Would it be "better," if, say, the Irish Supreme Court or the European Court of Human Rights had come to a conclusion that Amendment Eight were "unconstitutional" because a violation of the transcendent right of reproductive choice? A decision of the Irish Court would, of course, have to adopt the extremely interesting notion of "unconstitutional constitutional amendments," a doctrine that is present in a variety of legal systems across the world, as articulated in Yaniv Roznai's recent fascinating book on the subject. (Ask yourself if the United States could reinstitute slavery by adding a new amendment proposed and ratified in accordance with the procedures set out in Article V.)

***

Selective editing to avoid context? Brett obviously spent a lot of time on phrasing his 7:02 AM comment overnight in his role as a troll of this Blog.

Your analysis of the facts in the past has been suspect, including as shown when you go to certain links provided. Mr. W. has cited this in the past. So, yes, I'm wary without more.

Brett: "Ireland's fertility rate dropped from 4 to about 2 (replacement) between 1970 and 1990, (Amendment 8 was adopted in 1983.) and then stabilized at just about replacement up until recently."

I got to the first link. The fertility rate continued to drop by the chart provided until 1995, not 1990, years after the adoption of the amendment. There was continual slight movement over those years. Note the slight dip in 2005. Various factors are likely cited over those years by those skilled at demographics.

Anyway, again, the REASON for changing numbers is varied and merely changing this one provision will be of limited effect. There was a great drop off from 1960 on, most probably in significant part because of modern birth control. Anyway, merely legalizing abortion will be but one of various factors. This has not been refuted.

The "parachute" is denying women a basic right of control over fertility.

Reproduction rates collapsed in nearly all progressive nations with the combination of government replacing the family as the primary source of economic support (turning children from economy necessities to economic liabilities) and contraception/abortion (allowing couples to opt out of those economic liabilities). The US has now joined them with a sub-replacement 1.7 children per couple.

The abortion holocaust has claimed over 54 million lives since Roe in the United States alone, exponentially more people than we lost in all our wars combined and approaching Black Death pandemic levels.

If the lost lives mean nothing to you, then the coming economic collapse might. China (which slaughtered hundreds of millions enforcing their one child policy), then Japan and the EU, followed by the United States will experience an explosion of elderly dependents and a corresponding collapse of productively employed adults and societal income to support them all. Soon after this fifty-seven year old retires at my planned age of seventy, Social Security will go insolvent and then the nation will follow suit attempting to pay these unfunded liabilities from a slow and then negative economic growth rate. You younger folks are screwed completely.

A large part of our recent economic success during the 80s and 90s was due to a "demographic dividend" where the mass of Boomers entered the work force joined by the women of that cohort, dramatically increasing the ratio of productive workers to the dependent children and elderly, as well as working age government dependents.

Now we are facing an demographic collapse because the native Boomers are retiring without fully replacing themselves and the immigrant kids who kept the nation at nominal replacement level are not nearly as productive. Now, immigrants are following the pattern of the natives and are having substantially fewer children.

The economic consequence of a demographic collapse is easy to illustrate.

Let's assume the nation of Demographia starts off with 50% of the population working enough to each produce $100,000 for a per capita income of $50,000. However, that generation only has 1.5 children per couple to replace them in the labor force. Now, only 43% of the population is working to produce $100,000 each for a per capita income of only $43,000. And so on.

Productivity growth cannot make up for the demographic collapse because progressive misdirections of the economy have reduced productivity growth to nearly zero.

Pretty soon this unsustainable political economy will wipe out the economic gains of decades.

SPAM seems to be making the economic case for more immigration to make up for the declining fertility rate of white supremacists. Or is SPAM just continuing to shoot blanks as do many in rural America?

A common feature of authoritarians, from Hitler to Stalin, is an obsession with national demographics, especially native women not having enough children, and the use of coercive state measures on women to counter this. Any actual libertarian would, I think, think it's not public business at all how many babies people are having or not.

The supposed connection between abortion restrictions and liberalization and demographic decline doesn't seem established by Ireland's experience. As I understand, Ireland has, since the *1860's* criminalized abortion. What happened with Amendment 8 in the 70's was just that this criminalization was constitutionalized. So the *entire* demographic decline Brett notes happened *when abortion was illegal.* The defeat of Amendment 8 only now makes it possible for Parliament to reverse abortion's criminalization.

Ireland, a state which criminalizes abortion, has the second highest fertility rate in Europe. The highest goes to France, which has abortion not only by demand (up until the 12th week of conception) *but has the state pay for the procedure and related procedures as well.*

Ireland's population decline dates from the potato famine. The area now occupied by the RoI had 6.5 million people in 1840. It has 4.8 million today. Abortion has been illegal there the whole time AFAIK.

"progressive misdirections of the economy have reduced productivity growth to nearly zero"

Nonfarm Labor Productivity has increased five-fold from 1950 until now, so unless you want to argue there were no progressive misdirections of the economy during that time period, the claim is laughable.

Lower fertility rates always follow successful industrialization. It's true for France, the US, Singapore, Australia, Russia, Malayasia, any country you want to look at regardless of culture or government. Industrialization allows women into the workforce, women who can have careers put more time and thought into them and less time and thought into having and raising babies, and gives the scientific means to control reproduction along with the choice of women (and then they use it, because of the reasons just described). This is just empirical reality.

A sure sign of a third world or struggling economy is that it has a high fertility rate and a large portion of it's population between 0-14 years of age.

There may very well be distinctions between male libertarians and female libertarians on such coercive state measures on women that Mr. W referred to in his opening paragraph. But is there a libertarian view on abortion?

Would we in fact support any given right if we didn't feel that, overall, people would use their assigned rights well, which would inevitably involve at least something of a utilitarian calculus that the world benefits from the choices made.

I think this is something of an academic point. Rights generally are in place because they are deemed good and useful. They will in certain cases be used "wrongly" (e.g., there is a right to marry; some marry horribly; some raise their children horribly etc.), but they are seen as mostly exceptions. In part, it is a matter of fearing governmental power. So, even in respect to "bad parenting" (below full fledged actionable abuse), we don't trust the government to step in. But, overall, even there, rarely that alone is the point.

"we all enjoy a fundamental right to liberty from government power so long as we do not harm others and the government may only exercise its power to prevent us from harming one another."

'Libertarians' who believe that conception confers full rights haven't thought through what they are talking about. If we take them at their word we get a state that is terrifingly intrusive. An expectant mother, one that would have no reason to know she is pregnant because of the early stage, that engages in too vigorous aerobics classes endangers her embryo, the same expectant mother that drinks a beer does so too,..Bart's 'liberty principle' in this area would endorse laws requiring women take regular pregnancy tests before engaging in aerobics, having a Miller High Life, etc., lest they recklessly endanger a microscopic person. A more intrusive government I cannot imagine...

As I have noted before, I have no problem with the relatively free immigration under the laws in place when my ancestors came here so long as the welfare state is limited to citizens. However, immigration will not solve the problem of collapsing fertility in progressive nations because we are importing low skill immigrants to replace high skill natives and immigrant reproduction quickly falls off to native levels as we are seeing now.

Mr. W: Nonfarm Labor Productivity has increased five-fold from 1950 until now, so unless you want to argue there were no progressive misdirections of the economy during that time period, the claim is laughable.

Productivity increase started to fall off in the 1970s until it almost disappeared during the Obama depression. This decline neatly correlates with the regulatory explosion and the increasingly progressively punitive nature of our tax code (increasing percentage of the tax burden on the most productive 20% of the population) starting in the 1970s.

Note that SPAM is employing Trump's "multiple tweets" method in an effort by SPAM to "photo shop" his own brand, that of a rural libertarian who has been shooting blanks. Alas, SPAM's quantity fails to provide quality. [Note the time intervals of his six consecutive comments.]

The tax rate on top earners during the Eisenhower administration was around 90%, much higher than in the 70's.

It's also interesting to know that you now think progressivism only really settled in during the 1970's.

"The rule does not require government to enact laws when the harm is de minimus."

If you really believe early conception embryos are the same as children the harm of vigorous exercise (which can cause miscarry) or drinking by their mother isn't 'de minimus' but equivalent to a mother drinking and driving with her kid in the car, therefore really believing that would require a much more wide ranging and intrusive coercive regime by the government.

The tax rate on top earners during the Eisenhower administration was around 90%, much higher than in the 70's.

The effective tax rate was far lower than the nominal rate.

https://taxfoundation.org/taxes-rich-1950-not-high/

Furthermore, I am discussing who bears the burden, not the effective tax rate.

The combination of GOP across the board or middle class concentrated tax cuts and Democrat means tested tax credits has removed the bottom quintile nearly entirely from the federal tax code and reduced the burden of the middle 60s to far below their share of the national income. The top 20% of earners pay about 70% of the tax burden, which is substantially above their share of the national income.

https://www.cbo.gov/publication/51361

The recent GOP tax reform made the federal tax code even more progressively punitive.

The "recent GOP tax reform" referred to by SPAM permits for the wealthy to politically tithe a portion of their tax savings to the Republican Party in conjunction with Citizens United in an effort to emulate the power of the late 19th century's The Gilded Age in this Second Gilded Age.